Seibert v. City of San Jose (247 Cal. App. 4th 1027, 2016)

Opinion

RUSHING, P. J.

Plaintiff Grant Seibert petitioned the superior court for a writ of administrative mandamus to set aside a decision by the Civil Service Commission (Commission) of the City of San Jose (City) denying his appeal from a decision by the San Jose Fire Department (Department) to terminate his employment as a firefighter and paramedic. The dismissal was based upon five charges of misconduct, two of which stemmed from his exchange of salacious e-mails during work hours with a 16-year-old girl who had visited the station, and three of which stemmed from allegedly improper conduct toward a female coworker. The trial court set aside the Commission’s decision on all but one of the charges, and found that charge insufficient to sustain the level of discipline imposed. Both parties have appealed. We hold that (1) the Commission was not deprived of jurisdiction by the belated filing of the notice of discipline on which the challenged dismissal was based; (2) the trial court properly concluded that the e-mail exchange as alleged in one charge, which made no reference to the recipient’s age, could not be found to violate any applicable rule or policy; (3) the court permissibly found, on conflicting evidence, that Seibert lacked actual or constructive knowledge of the recipient’s age; (4) the court erred by refusing to consider the contents of interview transcripts which constituted the chief evidence of misconduct toward a female coworker; and (5) the court should have directed that any further administrative proceedings be heard and determined by an administrative law judge. We will reverse the judgment for further proceedings consistent with our opinion.

Background

I. Salacious E-mails

On the morning of Thanksgiving Day 2008, a female high school student who lived in the neighborhood of fire station 28 brought a cookie pie to the firefighters there. The girl, to whom we shall refer as “N.C.,” was in 10th grade at the time, and a few months short of her 17th birthday. She was given a tour of the station by respondent and cross-appellant Seibert. At its conclusion he took a picture of her next to a fire engine. He obtained her e-mail address so that he could send the picture to her. At 11:00 a.m. he sent her the picture and thanked her for the baked goods, thus commencing the exchange of e-mails that ultimately included the messages underlying the first set of charges here.

On December 15, 2008, N.C. again appeared at the station, this time in the company of two or three male classmates. Seibert gave the youths a tour of the station. At least one of them played junior varsity football at their high school, and recognized a photograph of the station supervisor, Captain Leong, who was a varsity football coach at the same school. He was summoned to greet them.

While at the station, N.C. apparently injured her elbow. At 2:54 p.m., after she left, she e-mailed Seibert, describing her injury. This led to an exchange of e-mails over at least a five-hour period, which grew increasingly risqué while playing on the conceit that Seibert might use his paramedic skills to treat the injury (all spelling and punctuation as in original):

At about this point N.C.’s father entered the room and saw what she was doing. He printed out copies of the messages and went to the fire station, arriving in the late evening. He asked to see the person in charge, who was Captain Leong. Leong described him as appearing “very upset.” According to him, the father said, “Your firefighter has been e-mailing my daughter throughout the day, throughout the night. I have a stack of hard copies here of e-mails.” He wanted to know the captain’s chain of command. “He wanted to call the police department.” The captain called his supervisor, the battalion chief, who came to the station to meet with the father. While he was en route, the father went outside to wait, and Captain Leong asked Seibert “what was going on. And I told him that this man is very upset. And he said that you’ve been e-mailing his daughter, who is only 16 years old. [¶] And at that point he responded, ‘Well, it was mutual.’ ” The Captain told Seibert that the father “wants you off the rig. He doesn’t want to know that we’re coming into his area with you on the rig.”

As the father later recounted the meeting to the City investigator, he told Captain Leong, “[L]ook I want to put you on notice, I believe you have a predator in your midst. He’s had inappropriate contact with my daughter via email and I want that person removed from duty and taken out of the office, something to that extent.” He made similar comments to the battalion chief, also telling him “that I would be escalating the matter, he described to me how to do that . . . , [he] said that he would also be making an escalation report the following day.” At the time of the father’s interview, he reported that the matter had “moved over to the police department,” which had started an investigation.

II. Interactions with Coworker

The then chief explained that by virtue of the father’s charges, the Department “couldn’t keep [Seibert] on the line .... As a paramedic, they just have too much intimate contact with people . . . .” Therefore, on a date not reflected by the record, he was assigned to the Department’s training center. Also assigned to the training center was fellow firefighter Leah Fazio. According to the transcripts of her interview with City’s investigator—which the trial court ruled largely inadmissible—Fazio described two incidents in which Seibert touched her in an unwelcome manner and multiple incidents in which he made inappropriate remarks about his or her private life. (See pt. V., post.)

III. Investigation; Proceedings Before Commission

On February 13, 2009, City notified Seibert that it would be “conducting a personnel investigation” and that he was “considered the subject of the investigation.” The office of employee relations retained Morin Jacob, a private attorney specializing in public employment law, to investigate specified “allegations” based on the e-mail exchange with N.C. About two months later, she was also asked to investigate Seibert’s conduct with respect to Leah Fazio and to “make factual findings pertaining to whether Seibert’s conduct resulted in any violation of City policies.” In connection with the two investigations she interviewed Seibert, Fazio, and several other witnesses. She did not interview N.C., relying instead on a “summary of the recorded interview” conducted by police.

In her report on the e-mail incident, dated August 3, 2009, Jacob found that (1) Seibert had indeed exchanged the e-mails in question with N.C., (2) the evidence was “inconclusive” with respect to whether Seibert knew N.C. was a minor, (3) Seibert did not use city-owned computers to communicate with N.C., but (4) the exchanges did occur while Seibert was on duty. She also concluded that Seibert had made statements during the investigation that “either: called his credibility for truthfulness into question, made him appear evasive during this investigation, or that were inconsistent with the statements of his co-workers.” The most consequential of these statements were probably his denial of recollection as to whether he worked on certain dates, his professed inability to recall N.C.’s name, and his professed ignorance that Captain Leong was a football coach at the nearby high school.

In her report on the Leah Fazio incident, dated August 4, 2009, Jacob opined that the Department “may determine that Seibert’s actions . . . violated the City’s discrimination and harassment policy; that his actions were discourteous to Fazio; and that his actions have discredited the fire department, and impaired the good order and discipline of the department. It is also a violation of City policy to act in a manner that is detrimental to the public service. Violation of the fire department rules and regulations is also a violation of City policy. Finally, it may be determined that Seibert was dishonest during this investigation since he made substantive changes to statements made during his initial interview, or it may be determined that Seibert violated some other policy not mentioned herein.”

On November 2, 2009, the fire chief issued an amended notice of discipline based upon six charges: (1) that Seibert ‘“exchanged emails with a female San Jose resident, during work hours, which became sexual in nature”; (2) that he ‘“interacted inappropriately during work hours with the same female noted above, who [he] either knew or should have reasonably known was a minor”; (3) that he ‘“inappropriately touched a female coworker”; (4) that he ‘“made inappropriate comments to a female co-worker”; (5) that he ‘“engaged in inappropriate conduct, including, but not limited to, unwelcome attention, and/or leering/staring, towards a female co-worker”; and (6) that he was ‘“dishonest during an administrative investigation and . . . not forthcoming with the investigator on several occasions.”

On November 17, 2009, the director of employee relations issued a notice reciting that a “Shelly Conference” had been held four days previously ‘“to provide you with an opportunity to respond to the Amended Notice of Intended Discipline . . . , and present any information for consideration before a final determination was made . . . .” (See Shelly v. State Personnel Board (1975) 15 Cal.3d 194, 215 [124 Cal.Rptr. 14, 539 P.2d 774].) The notice went on to state that Seibert would be dismissed from his position with the Department effective November 18, 2009. As grounds for this action the notice recited all six charges set out in the amended notice of intended discipline.

On December 3, 2009, counsel for Seibert wrote a letter to the City manager requesting arbitration pursuant to City’s policy manual or, failing that, an appeal before the Commission. He wrote separately on the same date to the Commission, requesting a hearing ‘“in order to appeal his dismissal.”

On May 5, 2011, after taking testimony and receiving documentary evidence, the Commission upheld all of the charges asserted in the notice of discipline except the charge that Seibert had been guilty of dishonesty during the investigation. It sustained Seibert’s dismissal based on the remaining charges.

IV. Petition for Writ

On June 29, 2011, Seibert filed a petition for writ of administrative mandate and other relief in the superior court. As grounds for relief he alleged that (1) the Commission had lacked jurisdiction by virtue of City’s failure to file the notice of discipline within the time allotted by a governing ordinance; (2) the Commission failed to provide a fair hearing in several respects, including by “consider[ing] inadmissible evidence”; and (3) the Commission abused its discretion in 20 specified respects. The trial court ultimately issued an amended statement of decision concluding in essence that, while there was sufficient evidence to establish the e-mail exchange with N.C. as alleged in the first charge, there was insufficient evidence to establish that this conduct violated any written policy in the absence of actual or constructive knowledge on Seibert’s part that he was corresponding with a minor. The court rejected, as less plausible than contrary evidence, the evidence suggesting that Seibert knew or should have known that N.C. was a minor. Nor did the court find the evidence sufficient to establish any of the other charges. In finding the evidence insufficient to establish the charges concerning Leah Fazio, the court noted that she denied any recollection of relevant events in her testimony before the Commission, and largely refused to consider the transcript of her questioning by investigator Jacob, on the ground that it had not been adequately authenticated. The court concluded that the evidence established, ‘“at worst, inappropriate horseplay subject to admonition or perhaps minimal suspension without pay.” The court issued a peremptory writ directing City to set aside Seibert’s dismissal and the Commission’s decision upholding it and to reconsider these actions in light of the court’s decision. City promptly appealed, and Seibert cross-appealed.

Discussion

I. Commission’s Subject Matter Jurisdiction

At the threshold we address a jurisdictional objection pressed by Seibert in his cross-appeal. He contends that the Commission lacked jurisdiction to proceed against him because the notice of discipline on which his dismissal rested was not filed with the Commission within the time allowed by the governing ordinance. The trial court addressed this subject in the first phase of a bifurcated trial, at the conclusion of which it wrote a careful and thorough statement of decision rejecting Seibert’s contention. If this were error, as Seibert insists, it would moot all other questions before us. We have concluded, however, that the trial court did not err.

Seibert’s argument rests on San Jose Municipal Code (SJ Municipal Code) section 3.04.1380, subdivision B (section 3.04.1380B), which provides in relevant part that ‘“[n]o disciplinary action of any type or duration shall be valid unless a formal written notice thereof is served upon the employee and filed with the secretary of the commission within seventy-two hours of the effective date of the discipline.” (Italics added.) Seibert does not deny that the notice here was served on him within the prescribed time. He contends, however, that it was not ‘“filed with the secretary of the commission” within that time; that this rendered the notice void; and that the Commission was thereby deprived of jurisdiction.

For purposes of analysis we will assume that the notice of discipline was not filed in compliance with SJ Municipal Code section 3.04.1380B. The evidence established that the notice was issued on November 17, 2009, stating that Seibert was dismissed from City employment effective the next day, November 18. The notice bore an entry indicating that copies were directed to the fire chief, Seibert’s personnel file, and ‘“Civil Service Commission.” However, there was no evidence of actual receipt by the Commission before December 8, 2009, when a copy of the notice arrived as an attachment to a letter from Seibert’s attorney. After taking live testimony on the subject, the trial court found as a fact that the notice ‘“was not filed with the Commission until Dec. 8, 2009,” which was some 17 days beyond the 72-hour deadline specified in the ordinance.

Seibert contends that the untimely filing of the notice deprived the Commission of power in the matter, rendering void any action it might take. The trial court found that he was estopped to raise this objection because he failed to do so until after the Commission had acted. As the court observed, Seibert did not object to the timeliness of the proceeding until some 17 months after he had appealed his dismissal to the Commission. During that time the Commission had conducted four hearings in which Seibert participated without objection. He first objected to the untimely filing of the petition in a petition for rehearing filed May 31, 2011.

Seibert contends that he could not be estopped to raise the objection because it went to the Commission’s subject matter jurisdiction, a matter that can be raised at any time, and as to which objections cannot be waived or forfeited. We decline to attribute such grave consequences to the filing requirement. First, we question whether it is properly viewed as mandatory, rather than merely directory, for purposes of determining the effect of noncompliance. ‘“[T]he ‘directory’ or ‘mandatory’ designation does not refer to whether a particular statutory requirement is ‘permissive’ or ‘obligatory,’ but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.” (Morris v. County of Marin (1977) 18 Cal.3d 901, 908 [136 Cal.Rptr. 251, 559 P.2d 606], limited on another point in Caldwell v. Montoya (1995) 10 Cal.4th 972, 987, fn. 8 [42 Cal.Rptr.2d 842, 897 P.2d 1320].) “Many statutory provisions which are ‘mandatory’ in the obligatory sense are accorded only ‘directory’ effect. . . . [¶] . . . The great bulk of the cases which have invoked the doctrine . . . recognize that the ‘directory-mandatory’ distinction is concerned only with whether a particular remedy—invalidation of the ultimate governmental action—is appropriate when a procedural requirement is violated . . . .” (Morris, supra, at pp. 908-909, fn. 4.) “Time limits are usually deemed to be directory unless the Legislature clearly expresses a contrary intent. [Citation.] ‘In ascertaining probable intent, California courts have expressed a variety of tests. In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. [Citations.] Other cases have suggested that a time limitation is deemed merely directory “unless a consequence or penalty is provided for failure to do the act within the time commanded.” ’ [Citation.]” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1145 [43 Cal.Rptr.2d 693, 899 P.2d 79] [action by State Personnel Board not invalidated by failure to render decision within statutorily prescribed time].)

We can readily see why failure to give timely notice to disciplined employees might be held mandatory in this sense, for without it they cannot defend themselves. But we see no reason to think the requirement of timely filing of the notice should be mandatory. The only apparent purpose of the requirement is to allow the Commission to prepare for an administrative appeal by, e.g., opening a file in the matter. If no appeal is filed, we doubt that the Commission’s filing of a copy of the notice of discipline has any practical effect or purpose. If the employee does appeal, and the Commission has not previously been notified, it will learn of the appeal when the employee initiates it—as apparently happened here.

For these reasons, we find it difficult to attribute to the filing requirement an importance that would elevate it to the status of mandatory. A fortiori, we cannot find it “jurisdictional” in the sense necessary to sustain Seibert’s argument. Even when a prescribed time limit is “ ‘mandatory in the obligatory sense,’ ” it “ ‘ “does not necessarily mean that a failure to comply with its provisions causes a loss of jurisdiction.” ’ ” (Mt. Holyoke Homes, LP v. California Coastal Com. (2008) 167 Cal.App.4th 830, 841 [84 Cal.Rptr.3d 452] (Mt. Holyoke), quoting California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1147.) For these purposes, an act taken without “subject matter jurisdiction” is distinguished from an act taken “without or in excess of jurisdiction.” The former exceeds a tribunal’s fundamental “ ‘ “power to hear or determine the case,” ’ ” while the latter offends limitations on the manner in which such a power, once present, may be exercised. (Mt. Holyoke, supra, at p. 840.) An action taken without subject matter jurisdiction is said to be “void” and subject to invalidation at any time. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 [16 Cal.Rptr.3d 76, 93 P.3d 1020].) In contrast, an action within the tribunal’s subject matter jurisdiction, but “in excess of its jurisdiction” in the broader sense, is said to be only “voidable.” (Id. at p. 661.) For present purposes, this generally means that a party may become estopped to challenge an action of the second type by failing to lodge a timely, appropriate objection. (Ibid.)

Here we are confident that the Commission possessed subject matter jurisdiction over the proceeding. As the governing rules are structured, every disciplinary action commences when the “appointing authority” serves notice of the intended action. (SJ Mun. Code, § 3.04.1380, subd. A.l.) The discipline takes effect without further action unless the employee files an answer with the Commission within 20 days after service of the notice. (Id., § 3.04.1390.) It is the employee’s answer, not the originating notice, that triggers an “appeal” before the Commission. (Id., §§ 3.04.1390, 3.04.1400.) “If the employee fails to answer . . . , the disciplinary action taken by the appointing authority shall be final.” (Id., §§ 3.04.1390.) If an answer is filed, “the commission shall hold a hearing” (id., § 3.04.1410) after which it may “modif[y] or revoke[]” the challenged action (id., § 3.04.1450, subd. B).

The filing of an answer thus vests the Commission with jurisdiction, i.e., the fundamental power to hear the appeal and to determine the validity of the appointing agency’s action. As previously noted, the requirement that the agency’s notice of discipline be filed with the Commission seems to serve only a bookkeeping function. This defeats Seibert’s attempt to analogize the requirement to that of filing a timely notice of appeal from a judgment of the superior court. Noncompliance with the latter requirement deprives the reviewing court of jurisdiction because timely filing is the triggering event which vests the court with jurisdiction in the first place. Here it is the employee’s answer, not the agency’s notice, that triggers an appeal and thus parallels a notice of appeal in a civil case. The requirement that the agency file the notice of discipline with the Commission has no parallel in appellate procedure. One might hypothesize, for purposes of analysis, an analogous rule directing superior courts to file, in the Court of Appeal, a copy of every judgment they render. If such a rule existed, we doubt that it could be understood or applied to render void any judgment not so filed, or to deprive the reviewing court of the power to entertain an appeal. Indeed, we doubt that it would be seen as “mandatory” in any sense bearing on the validity of either the trial court’s or the reviewing court’s judgment.

There is no occasion to pursue this thought experiment further, however. It is enough for present purposes to say that City’s failure to file a copy of the notice with the Commission did not deprive the Commission of jurisdiction to entertain Seibert’s appeal but at most provided a ground on which Seibert might have been entitled to object to the notice. Assuming this means the disciplinary action was “voidable” on this ground, we readily conclude— along with the trial court—that Seibert’s failure to raise the objection at the earliest opportunity barred him from asserting it later. Had the point been seasonably asserted, City might have cured the defect by issuing a new or amended notice of discipline. Instead the defect was not brought to City’s attention for nearly a year and a half, during which time City and the Commission, as well as Seibert, sank substantial time and resources into an adjudication of the substantive issues raised by Seibert’s appeal. It is one thing to belatedly invalidate an official action infected with a noncurable defect of substance. It is quite another to mandate a do-over based on a technical defect that might have been remedied with no prejudice to anyone had it been raised when it first appeared.

Seibert asserts that he cannot fairly be estopped to assert the defect because he himself was ignorant of it until shortly before he raised it in his petition for rehearing before the Commission. The trial court inferred that Seibert learned of the untimely filing of the notice in April 2011, when Seibert, or perhaps his counsel, asked to inspect the Commission’s file. He raised the objection in his petition for rehearing filed the following month. As the court observed, the file was a public record and might have been inspected at any time. But estoppel in this context does not require fault on the part of the party to be estopped, or blamelessness on the part of the opposing party. It is less akin to equitable estoppel than to the kind of procedural forfeiture that generally bars an appellant from raising objections that he or she failed to assert in the trial court. (Cf. Mt. Holyoke, supra, 167 Cal.App.4th at pp. 843, 844 [comparing doctrine to a defendant’s forfeiture of objection to personal jurisdiction by making a general appearance].) Such doctrines rest less on weighing the relative fault of the parties than on allocating the burden of discovering defects whose delayed assertion will entail a substantial but avoidable waste of time and resources. Here Seibert seeks to set at naught the considerable time and effort—and public resources—expended in his administrative appeal, based on a defect that appears to have had no practical consequences at all. The trial court quite properly rejected this attempt.

II. Standard of Review

City’s foremost contention is that the trial court failed to accord the Commission’s decision the degree of deference to which it was entitled. Seibert’s interest in his public employment status implicated a “fundamental vested right.” (McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 129 [8 Cal.Rptr.2d 548]; see Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 500 [210 Cal.Rptr. 788]; Estes v. City of Grover City (1978) 82 Cal.App.3d 509, 514 [147 Cal.Rptr. 131], citing Brush v. Los Angeles (1975) 45 Cal.App.3d 120, 123 [119 Cal.Rptr. 366].) As a result, the trial court was required to exercise its independent judgment in reviewing the Commission’s findings. (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32, 44-45 [112 Cal.Rptr. 805, 520 P.2d 29]; Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144 [93 Cal.Rptr. 234, 481 P.2d 242].) The trial court acknowledged this rule, but did not acknowledge the further requirement that it indulge a “strong presumption of correctness” with respect to the Commission’s findings, as mandated by Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 [85 Cal.Rptr.2d 696, 977 P.2d 693] (Fukuda). (See id. at pp. 808, 819-822.)

In Fukuda, supra, 20 Cal.4th at pages 823-824, a public employer defended its decision to discipline a police officer by contending, among other things, that the burden was on the employee to establish that the administrative findings were unsound. The trial court rejected that contention and explicitly placed the burden on the employer to sustain the administrative findings. (Id. at p. 810.) The Court of Appeal approved that approach, concluding that a presumption of correctness, with the burden of proof on the challenger, was inconsistent with independent review. (Id. at p. 808; see id. at p. 810.) The Supreme Court reversed, holding that, properly understood, the trial court was required, despite the independent judgment test, to indulge a strong presumption in favor of the administrative findings and to place the burden on the challenger to rebut those findings. (Id. at pp. 817, 825.)

City contends that the trial court failed to apply these principles. The record on this point is ambiguous. In the most pertinent passage of its amended statement of decision, the court wrote, “While the Court understands that it should give deference to the Commission, the Court also understands that it is not to use the ‘substantial evidence’ test. Strumsky v. San Diego County Employees Association[, supra,] 11 Cal.3d 28, 31; Rigsby v. Civil Service Commission (1974) 39 Cal.App.3d 696, 700 [115 Cal.Rptr. 490]; Jackson v. Los Angeles (2003) 111 Cal.App.4th 899, [909] [4 Cal.Rptr.3d 325]; and Lake v. Civil Service Commission (1975) [47] Cal.App.3d 224 [120 Cal.Rptr. 452], The Court further understands it is not bound by the factual determinations made by the Commission if it does not believe those factual determinations were accurate or supported by the evidence. San Dieguito Union School District v. Commission (1985) 174 Cal.App.3d 1176, 1180 [220 Cal.Rptr. 351].”

This recital is an accurate statement of law as far as it goes, but the failure to acknowledge Fukuda’s “strong presumption of correctness” and allocation of the burden of persuasion is troubling. On the other hand, we ourselves are constrained by the presumption, also acknowledged in Fukuda, that “[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409; see Fukuda, supra, 20 Cal.4th at p. 812, quoting Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 88 [87 P.2d 848] [On otherwise silent record, reviewing court “ ‘must conclusively presume that the trial court performed its duty, gave full weight to the presumption of validity of the board’s findings, but nevertheless found against the board .... The determination of the trial court on conflicting evidence on the facts is binding on this court on this appeal.’ ”].) This rule is particularly apt where the complaining party had an ample opportunity to bring deficiencies in the judgment to the trial court’s attention, and failed to do so. Here City submitted objections to the court’s initial statement of decision. For all presently relevant purposes, that statement was identical to the one ultimately filed. Yet City said nothing in its objections about the court’s failure to acknowledge—let alone a supposed failure to apply—the Fukuda presumption. Under these circumstances, we must presume that the court properly applied the law and that when it acknowledged its duty of “deference” to the Commission, it was alluding to the Fukuda presumption or its functional equivalent.

We need not finally decide the issue, however, for as explained in part V., post, we have concluded that it is necessary to reverse the judgment on other grounds. Since this will set the matter at large in the trial court, the court is directed to give due regard to the Fukuda presumption in its reconsideration of the issues.

III. Salacious E-mails as Misconduct

The first charge of misconduct set out in the notice of discipline was that Seibert “exchanged emails with a female San Jose resident, during work hours, which became sexual in nature.” The notice of discipline alleged that Seibert’s conduct in this regard was grounds for discipline under four provisions of the applicable section of the SJ Municipal Code, as well as City’s code of ethics, and three provisions of the Department’s rules and regulations. The Commission sustained the charge, finding that Seibert had violated all of the cited provisions. The trial court concluded that this finding was not supported by substantial evidence.

The cited provisions of the SJ Municipal Code are quite vague, authorizing City to impose discipline for “B. Misconduct,” “D. Failure to satisfactorily perform the duties of his position,” “E. Failure to observe applicable rules and regulations,” and “V. Any other act . . . which is detrimental to the public service.” (SJ Mun. Code, § 3.04.1370.) The cited provisions of the code of ethics are, if anything, even less specific, consisting of five pages of, on one hand, broad provisions of an advisory or aspirational character, and on the other, more specific provisions concerning matters of no pertinence here, such as conflicts of interest, acceptance of favors and gifts, and use of confidential information. The Department’s rules and regulations, if somewhat more specific, seem of doubtful relevance. Section 25.10 of the rules and regulations enjoins members of the Department to “[b]e courteous and respectful to the public and other [y/c] with whom they have contact.” Section 26.1 of the rules and regulations provides that “[i]n matters of general conduct, members shall be governed by the ordinary and reasonable rules of behavior observed by law abiding and self-respecting citizens and shall not commit an act, either on or off duty, tending to bring reproach or discredit upon the Department or its members.” Section 26.2 of the rules and regulations provides, “No member shall conduct themselves in a manner, or be a party to, any act which would tend to impair the good order and discipline of the Department.”

City failed to present substantial evidence that any of these provisions would be offended by a private exchange of salacious e-mails between a firefighter and a willing unmarried adult. Its attempts to do so invariably degenerated into circularities, vague generalities, and naked conclusions. Thus City’s director of employee relations testified on direct examination that even if Seibert reasonably believed he was corresponding with an adult, “we’d still be terminating [him].” Asked why, he said, “Because the conduct as a representative of the San Jose Fire Department was absolutely reprehensible in our view. I think the fact that we believe that he knew or should have known that she was a minor clearly is worse, but it doesn’t excuse the behavior of a San Jose Fire Department employee, who, by the way, is on duty and paid for [a] 24-hour shift. We’d still be facing serious issues with his conduct that occurred while he was a San Jose Fire Department employee.” Later asked to specify “what did he violate,” the director managed to speak at length without identifying any specific norm, rule, policy, or standard that was even arguably implicated by the challenged conduct. Still later the presiding officer asked him “what policies are violated by a firefighter engaging in sexual consultation or sexual conversations with consenting adults, the two adults are consenting. What policy?” The witness replied, “the ones that are listed here,” meaning those listed in the notice of discipline. The officer again asked him to “please give the policies,” in response to which the witness merely cited the list of provisions set forth in the notice.

Similarly, the fire chief at the time of Seibert’s discharge testified, “With the girl being a minor makes it even a more egregious offense. Whether it was a minor or not, it’s a citizen that you’re having inappropriate contact with while on duty. . . . [Sixteen] or not, still the actions are egregious enough for termination.” He made no attempt to explain how the “contact” was “inappropriate,” or what was “egregious” about it, apart from the age of the other participant. When asked to explain his recommendation that Seibert be fired, he testified, “When you’re on duty, you’re held to a higher standard. You’re being paid by the City to perform your duties and the rules and regulations also have some things in there that your work will be related towards the betterment of the department, those kinds of things.”

The only hint of impropriety in this testimony is that when he engaged in the e-mail exchange, Seibert was “on duty” and thus should have been devoting his time to “the betterment of the department” rather than indulging in private communications. But if this was a genuine standard of conduct, the evidence here suggests that every firefighter in San Jose openly flouts it without consequence. As the trial court correctly observed, “The testimony was overwhelmingly clear that on-duty firefighters are allowed to bring their own personal computers to the firehouse. They pay for their own wi-fi service, and they may communicate by computer or by using the public telephone box with whomever they want, whenever they want, about any subject they want while on duty.” In a footnote the court added, “There was testimony that the use of the internet was in many ways no different than the use of the public telephone at the firehouse. Firefighters were allowed the same freedom of expression and there was no suspension of their communications of any kind.”

Indeed, if anything this summary understates the extent to which firefighters were free to pursue their own interests when not called upon to perform official duties. Battalion Chief Sapien stated in his interview that firefighters are allowed to bring personal computers and cell phones to work. While city policies forbade using City-owned computers for anything but City business, there was no policy governing use of personal computers. So long as their use did not interfere with City or Department business, firefighters were free to use them for personal purposes. Fire Captain Lovens likewise testified that firefighters were free to use their computers for all kinds of personal activities, including “personal emails.” He did not understand such activities to offend any Department policy. He acknowledged having exchanged e-mails, as well as communicating in text and voice via social media, with people he might be dating, or with whom he might be in a romantic relationship. If such a communication were to become sexual in nature, it would not violate any department policy of which he was aware. Similarly, according to the police report, Captain Leong told an investigating officer that there were two classes of computers in use at the station—one “designated for city use only,” and ‘“also a wireless system so the fire fighters could use their personal laptop or computer devices.” Leong testified that while there is a ‘“very strict” policy limiting City’s computers to ‘“work-related issues,” he was aware of no written Department policy restricting ‘“use of personal computers in the firehouse.” Nor was he aware of any such policy concerning ‘“what type of content is appropriate to be sent” via personal computers.

Seibert himself testified without contradiction that “‘[everybody” in a firehouse is ‘“wifi’ing” on a laptop: ‘“People are on their computers, they’re doing online banking, they’re on eharmony.com, they’re doing online dating, checking vacations. I mean you have hours [i.e., of idle time] .... Guys are sitting on the co[u]ches in front of the TV and everybody has their computers and talking and streaming from Netflix movies, they got their earplugs in and then when the lights and the tones go off, people put their computers [down] and get to the rig. Some of the newer firehouses have individual bedrooms and sometimes people go to their bedrooms, close their door, they could be in there all day sleeping and then, eventually, we get a call and they come out of their bedroom.”

Indeed, far from prohibiting personal communications during work hours, the Department’s ‘“Routine Operation Policies and Procedures” governing ‘“Station Routine” expressly authorized on-duty firefighters to (1) make and receive calls using their own private telephones, and (2) use ‘“[w]ireless and electronic and computer devices,” specifically including cellular phones and laptop computers. The policy stated three limitations on such use, the most nearly pertinent of which states, ‘“Personal electronic devices that represent a distraction from the employee’s assigned duties shall not be permitted. All personnel are responsible for ensuring that personal electronic devices do not negatively impact departmental operations or services to the public.” (Italics added.) On its face all this means is that firefighters must not allow the use of a telephone or laptop to interfere with doing their jobs.

City made no attempt to show that Seibert’s exchange of e-mails, at the time it occurred, had any effect on his work. Indeed the director acknowledged that interference with the performance of his duties played no part in the case: ‘“It wasn’t an issue that we believe was relevant in this particular issue. In other words, it didn’t come up that, for example, he didn’t go on a call because he was busy emailing. Obviously, we would have taken that into account if that were a fact here, but we didn’t hear any facts that related to his not going on a call.” At the same time, while he declined to frankly acknowledge that interspousal communications would not trigger disciplinary action, he was unable to ‘“think of a case where we’ve disciplined a husband or a wife in email conversations that occurred on somebody’s smartphone or something else.”

The nearest thing to a rule or policy against exchanges of the type at issue here is a memorandum from the fire chief concerning the use of social networking sites. It stated, most pertinently that “[m] embers should also be reminded that accessing social networking sites for personal use while on-duty is a violation of Rules and Regulations Sections 26.1 through 26.7, which prohibits employees from devoting any on-duty time to any activity that doesn ’t relate to Fire Department functions. While our 56-hour work schedules allow for down time, when on paid time our activities should support the Department’s Mission ‘To serve the community by protecting life, property, and the environment through prevention and response.’ ” (Italics added.)

For at least two reasons, this document does not support a finding that Seibert’s conduct offended any existing rule or policy. First, it was not promulgated until April 2010, some 16 months after the e-mail exchange at issue here. Second, the quoted language flatly contradicts both the “Station Routine” document and the testimony—all of the testimony—as to how firefighters actually conducted themselves, and were expected and permitted to conduct themselves, while on duty. When Captain Lovens was specifically asked about this memorandum, and the language implying that all on-duty time must be devoted to the interests of the Department, he first observed that the memo’s distinction between e-mail and social network sites was “quite vague” since the latter can be used to transmit messages that are functionally indistinguishable from e-mail. He then continued, “[T]he next line . . . prohibits employees from devoting the on-duty time to any activity that doesn’t relate to the fire department. Well, we watch TV, we rent movies, so in that case, we’ve been violating this policy for years and we’re violating it every day the moment we turn the news on and watch a news program and not dedicate our time to the fire department, so it’s really a gray area.” He explained further, “[W]e work for 24-, sometimes-, 48-, 72-hour shifts and it’s a matter of people need to take care of their business. If their business is taken care of, whether it be checking out the rig, the cleaning assignments, whatever, if they want to make a personal phone call or take care of a laptop issue or make a—shoot an email or even unwind with a little training video while we’re waiting for lunch, it’s not—it’s not a problem and I don’t think it’s a problem for any crews as long as it doesn’t affect the readiness of the crew. The readiness of the crew is what’s imperative.”

The Commission’s finding of misconduct cannot be sustained on the basis of an overbroad admonition which was promulgated a year and a half after the conduct at issue, which contradicts other written policies, and which is routinely honored in the breach by the entire firefighting force.

City attempted to establish that two other aspects of Seibert’s conduct warranted discipline. One is that the exchange grew out of a contact that Seibert had made in the course of his duties. But as the trial court noted, the employee relations director “admitted [that] the fire department has no specific written policy prohibiting firefighters from developing social contacts as a result of official on-duty contacts.” When Captain Lovens was questioned on this point, he found nothing objectionable about it. He said there had “definitely” been situations in which he “met someone through the firehouse and . . . then subsequently engaged in ongoing communications via email” or otherwise. The examples he cited seemed particularly innocuous— handing his business card to people and then communicating with them in his role as “liaison for the San Jose Fire Museum.” He did not think he had ever given out his card “to a female ... as a date,” but he went on to opine that he did not think it would be “inappropriate” to do so “in the right situation.” This was substantial evidence from which the trial court could conclude that there was no policy, written or otherwise, against engaging in social contacts with persons “met . . . through the firehouse.” We see no evidence to the contrary, notwithstanding the director’s apparent belief that it was intrinsically objectionable.

The director also suggested that the e-mail exchange warranted discipline because it consisted of sexual double entendres centered on Seibert’s status as a paramedic. Asked to explain how a private off-color e-mail exchange could violate the policies cited in the notice of discipline, the director replied, “[T]hese email exchanges were being sent to a citizen where Mr. Seibert is dearly identifying himself as a member of the fire department. That’s what it talks about, talks about when he’s on duty, when he’s not on duty, plus the emails that became sexual were about his role as a paramedic and conducting examinations. So he’s talking about how he conducts—you conduct examinations and then it keeps going and becomes sexual and he engages in that email communication. You read those emails and you see, this is not just some separate communication with your girlfriend or your significant other. Here, he’s talking about his role as a firefighter/paramedic and starts to get into a sexual exchange with her about examinations and what you would probe and all of those things. You have to take the context to understand and I believe if you take that context, I think a reasonable person would understand why that is absolutely a discredit to the San Jose Fire Department and why we believe Mr. Seibert should be terminated for it.” (Italics added.)

Under cross-examination, Seibert did not deny that the exchange involved “sexualizing the things you do as a paramedic and putting them in some sort of sexual context.” He acknowledged having taken his “role as a paramedic, a San Jose paramedic and turn[ed] it into a sexual thing with somebody who is a member of the public.” But the trial court was entitled to find the evidence before the Commission insufficient to establish that this characteristic increased the likelihood or extent to which the exchange threatened to bring discredit upon the Department or City.

We thus find no fault in the trial court’s conclusion that the evidence was insufficient to establish that the conduct described in charge 1 offended any existing rule or policy. We note, however, that the trial court nonetheless sustained this charge, while finding it insufficient to warrant dismissal, on the ground that that Seibert’s conduct created a “risk of embarrassment to the City” which “support[ed] some progressive disciplinary action.” It may well be that indiscriminate exchanges of salacious messages with relative strangers on company time creates an undue risk of embarrassment or even scandal. Indeed this case illustrates the danger. Assuming Seibert believed his correspondent to be a young adult, the fact is that he did not know and that, as it turned out, she was legally a child. Seibert was not prosecuted, but he was investigated, for what would be widely considered an extremely odious offense. We have no doubt, in short, that policies restricting such exchanges would be in order. We remain uncertain, however, that in the absence of such a policy, an abstract “risk of embarrassment” furnishes a ground for discipline. However the parties have not distinctly addressed this aspect of the trial court’s judgment. Since we are reversing on other grounds, the court may elect to revisit this issue on remand.

IV. Salacious Exchange with Minor

The Commission’s second finding of misconduct was that Seibert “interacted inappropriately during work hours with [a] female . . . , who[m] [he] either knew or should have reasonably known was a minor.” (Italics added.) The trial court rejected this theory, implicitly finding the evidence insufficient to establish that Seibert possessed actual or constructive knowledge of the minor’s age.

We have little doubt that a firefighter-paramedic’s exchange of sexually charged messages with a minor can expose the Department to disrepute. Here, when the minor’s father learned of the exchange he concluded that Seibert was a “predator” who could not be trusted in dealing with members of the public. No doubt many members of the public would share that view. And in view of the risk of creating such mistrust, we have no doubt that firefighters and other public servants can and should be held to a high standard when they engage in personal contact of any kind with persons who may be minors. Conceivably Seibert could have been disciplined for failing to ascertain whether the young person with whom he was communicating was an adult. As he acknowledged before the Commission, he “could have exercised a little bit more diligence checking out [N.C.j’s age.” A person in his position might well be charged with a duty of inquiry, lest he or she inadvertently jeopardize the Department’s relations with the public. But that is not how the charge against him was framed. It was based on the allegation that he actually knew, or in light of evidence before him should have known, that she was in fact a minor.

The evidence on this point was sharply conflicted. The Department’s theory was that N.C. openly disclosed her true age in Seibert’s presence, and that even if she had not, circumstantial evidence should have led him to realize that she was attending high school and therefore probably under 18. The evidence was certainly sufficient to sustain this view. N.C. testified that when she originally visited the station on November 27, 2008, she exchanged small talk with the firefighters. They asked where she went to school, and she named a local high school, saying she was a junior there and played on the volleyball team. At some point she told them that she was 16 years old, to which “[sjome of the guys . . . joked, Oh, you don’t look that old.” She was unsure whether they meant she looked older or younger. During this conversation Seibert was “[i]n the general area.” She also testified that when Seibert showed her around the station he did not ask any questions about whether she worked or went to college, as might be expected if he believed her to be a young adult. Further, she testified, when she returned to the station on December 15, Seibert asked her if she was studying for the SAT, i.e., the Scholastic Aptitude Test, which is taken by high school juniors in anticipation of applying for admission to college.

However, no other witness reported hearing N.C. mention high school, say she was a junior, or state her age as 16. Seibert testified that, on the contrary, she represented her age as 18. This was corroborated by fellow firefighter Gonzalez, who described an exchange in which Captain Cruz alluded to the possibility of the young visitor going out drinking with her friends after Thanksgiving dinner, to which she replied that she was not old enough; when asked her age, she said, “I’m only 18.” To be sure, some doubt was cast on Gonzalez’s recollection by statements in the police report, attributed to Captain Cruz, to the effect that a second young visitor had come to the fire station that afternoon. According to Cruz—who had retired at the time of the appeal hearing, and did not testify—Seibert introduced this second visitor as his girlfriend, and it was she with whom Cruz then had the conversation about drinking and age. Gonzalez had no recollection of a second visitor. However he placed the visit he recalled in the early afternoon, whereas the record leaves little doubt that N.C. had come to the station in midmorning.

City contended that further notice of N.C.’s real age was imparted by her second visit to the station, on December 15, 2008. It is undisputed that she was accompanied by two or three male schoolmates, one of whom was on the junior varsity football team, and that Captain Leong was summoned to greet them when one of the visitors recognized him from a photograph on the wall as a football coach at their high school. The evidence was equivocal, however, as to how much of this information was known to Seibert. In his interview he acknowledged hearing one of the male visitors make some reference to “high school” and a “coach,” but he “didn’t pay attention to it” and could not say “if that was a current thing or something in the past or someone had a brother.” In testimony before the Commission he acknowledged only overhearing a reference to a coach, after which the visitors indicated that they knew Captain Leong, whereupon Seibert called Leong, who came and greeted them. He denied knowing, at the time, that Leong was a high school football coach. City attempted to impeach this testimony, particularly with earlier statements by Captain Lovens that “anyone within the department” would know of Leong’s involvement in coaching.

City also alluded to N.C.’s physical appearance as more consistent with minority than majority. However the evidence on this point, too, was highly equivocal. By the time commissioners saw her, the events in question were nearly two years past. The nearest thing to evidence of her actual appearance at that earlier time is the interview of Captain Leong, in which he opined that he would think Seibert knew she was a high school student because she and her companions “seemed like [hjigh [sjchool [sjtudents.” More specifically, Leong assumed N.C. was a high school student because she “[ljooked like a high school student.” However N.C. herself raised doubt about how mature she looked, saying that when she told firefighters her age and they said she didn’t look it, she was unsure whether they meant she looked older or younger. Moreover Seibert testified not implausibly that she seemed unusually “confident” for a minor.

It also bears noting that not all high school students are minors. Most students reach the age of majority sometime in their senior year. This magnifies the relevance of N.C.’s testimony that she had not only told firefighters her age but also that she was a junior in high school, which would ordinarily make her 16 or 17 years old. She also said that Seibert had asked if she was studying for the SATs, which would suggest that he knew she was a junior, since that is when they are generally taken, and he as a college graduate would likely know this. However, Seibert gave a very different account of this conversation, or one on this topic, stating that N.C. told him she had already taken the SATs, had done very well on them, and was contemplating a “transfer” to a new college.

Various other circumstances were cited on both sides as tending to show either that Seibert should, or should not, have known N.C. was under the age of majority. For instance, Seibert said that N.C.’s seemingly irregular schedule suggested that she was in college, as did her references to a “dead week” to prepare for final exams. Rather than attempt to catalog the evidence further, however, we will simply observe that ample evidence would support a finding either that Seibert should have known, and perhaps did know, that N.C. was a minor, or that he justifiably supposed her to be older. This brings into sharp relief the standard of review, previously discussed. As we noted there, we must presume that the trial court applied the correct standard and we must uphold those findings insofar as they are supported by substantial evidence. Since they are, we cannot say that the court erred in finding that the weight of the evidence did not sustain the second charge. Again, however, it will be open to the court on remand to reconsider these questions, applying the “ ‘strong presumption’ ” of correctness mandated by Fukuda, supra, 20 Cal.4th at page 808.

V. Improper Conduct Toward Coworker

A. Background

1. Testimony Before Commission

The third through fifth counts of misconduct, which the Commission sustained, charged that Seibert (1) “inappropriately touched a female coworker,” (2) “made inappropriate comments to a female co-worker,” and (3) “engaged in inappropriate conduct, including, but not limited to, unwelcome attention, and/or leering/staring, towards a female co-worker.” The charges appear to be based on transcripts of interviews of the affected coworker, Leah Fazio, conducted by the Department’s investigator, Morin Jacob. When Fazio testified before the Commission, however, she professed not to recall the incidents described in the transcripts, or her own statements describing those incidents. To analyze the ensuing evidentiary issues it is necessary to recapitulate her testimony in some detail.

At the outset of her testimony Fazio professed not to recall having any “problems” or “concerns” involving Seibert. She remembered being interviewed by an investigator, but said she did not recall anything she said at that time. She testified, however, that she told the investigator the truth.

When the questioning turned to specific incidents, it tended to follow a pattern in which Fazio denied any memory of the incident, denied remembering having told the investigator about it, acknowledged that she must have done so, and affirmed that she had told the investigator the truth. First she professed not to recall telling the investigator that Seibert had inappropriately touched her. She was then asked to read to herself a portion of the transcript in which she appeared to tell the investigator that on her first day at the training center, where she and Seibert worked together, he came up behind her and—despite their scarcely knowing each other—poked her on both sides of her waist with his index fingers. After she denied that the transcript had refreshed her recollection regarding such an incident, the following exchange occurred: “Q Is there any reason for you to doubt that what you said on that date to the investigator is not [sic| true? [¶] A No. If it’s here, then it’s clear that I said it. [¶] Q And were you telling the truth on that date to the investigator? [¶] AI was telling the truth on that day to the investigator, yes.” (Italics added.) Asked whether she “believe[d]” the described events took place, she again denied any memory of “what happened at the training center.” This led to the following exchange: “Q That’s not my question. If that’s what you said on the day that you were interviewed by the investigator, do you have any reason to believe that’s incorrect? [¶] A No. [¶] Q So is that—based on that, would you believe that that’s what happened on the day that you indicated you first came to the training center? [¶] A Well, yeah. [¶] Q Yes or no? [¶] A Yes.” (Italics added.)

After she denied recalling “any other physical contact” with Seibert at the training center, she was asked to review a transcript passage describing an incident in which Seibert came up behind her while she was sitting at a computer, grabbed her ponytail, twisted it around his finger, and “made, kind of like a ooooh (high pitch)” sound. Again she acknowledged that she made the statements attributed to her, adding, “That’s what’s indicated here.” Again she affirmed that she was telling the truth to the investigator. She acknowledged having no “reason to doubt what you stated to the investigator on that date.”

Fazio next denied recalling any occasions on which Seibert “ma[de] any inappropriate comments” to her. She was presented with a transcript passage in which she had described Seibert’s tendency to “openly talk[] about his sex life,” including “his personal sex life with younger girls,” which she had then amended to say, “he didn’t actually say the word, I’m having sex with younger women. ... He just said, I love being younger girls, they’re great and they’re hot, and they’re beautiful and I lov